Stevenson v. Sons , 10 Pa. Super. 306 ( 1899 )

Opinion by

Beaver, J.,

Whitesell, use of Maul v. Peck, 165 Pa. 571, and s. c. 176 Pa. 170, give us in result the basis of the present action. In the former Mr. Justice Williams, delivering the opinion of the court, says: “ This judgment was marked satisfied on the record on the 26th day of November, 1892, by Whitesell & & Sons, who were the legal plaintiffs therein, and the attorneys of their assignee, Maul. More than eighteen months afterward this entry of satisfaction was struck off by the court below, at the instance of Maul, who testified on the hearing that he made the application at the suggestion of Whitesell.” It is not surprising, therefore, that the plaintiff in his statement alleged, as one of the grounds upon which he based his right to recover, that “ the said Maul at the suggestion and on the advice of said defendant presented to said court his petition, setting forth, inter alia, that he had never authorized or ratified the satisfaction of said judgment so made by his attorney.” The jury found as a fact that the defendant had practiced a deceit upon the plaintiff by his representations as to his authority from the use plaintiff in the judgment, which had been satisfied, to satisfy the same. By this finding the appellant admits himself bound but claims that he is not responsible for and not bound by the act of Maul and that, therefore, he is not liable in damages for any expense to which the plaintiff was put by reason of Maul’s application to have the satisfaction which was entered in the judgment against Peck stricken off and the subsequent proceedings had therein. There would be much force in this contention, if Maul, had acted entirely independent of or in opposition to the wishes of the appellant. The contrary is quite apparent. Although Maul does not testify in this ease distinctly that the appellant suggested the application for striking off the satisfaction of the judgment against Peck et al., the circumstances were, nevertheless, such as to suggest their cooperation in the effort, and this was an element in the ease which it was proper for the jury to consider. The defendant’s points were, therefore, properly refused.

As to the measure of damages, the rule was. strictly, if not narrowly, applied — the plaintiff was eonñnéd to actual cash outlays. Of this the appellant cannot with good reason complain.

The suggestion “ that, if there is any liability whatsoever, the liability should have been fixed as costs in these proceedings, and the plaintiff, Stevenson, having failed to have the costs so fixed by the Supreme Court, he it estopped now from recovering the same in an independent action as in this case,” will not bear examination. The proceeding to satisfy was commenced by Maul. Whitesell was not a party to it on the record in such a way as to be properly reached by the court’s decree. Maul was not to be held responsible for Whitesell’s alleged misrepresentation.

It follows, from what has been said, that the testimony as to the plaintiff’s expenditures in the employment of counsel and . printing of paper-books was properly admitted.

The case was fairly and adequately presented to the jury in a clear and dispassionate charge.

Upon a careful review of the whole ease, we find no reversible error and the judgment is, therefore, affirmed.